People with disabilities often face significant educational disadvantages due to the inaccessibility of learning materials. According to the World Blind Union, more than 90% of published works are inaccessible to blind or print-disabled individuals, contributing to a global “book famine”.

Visually impaired students may receive study material (such as textbooks, articles, and images) long after their peers, as these must be converted to an accessible format like Braille, large print, or audio.  This process is slow and expensive, and made ever more difficult by the requirement that copyright for visually impaired people be clarified or permissions obtained, which may be delayed or denied by rights holders.

These challenges set the stage for how South Africa is navigating copyright and consent requirements to improve access to works for blind and visually impaired individuals.

RELATED: Textbook Piracy: The Long Term Impact of Copying Textbooks

Marrakesh Treaty: Copyright for Visually Impaired People

Adopted in 2013, the Marrakesh Treaty facilitates the creation and international exchange of accessible-format books for persons who are blind or visually impaired. It introduces exceptions to traditional copyright laws and gives countries flexibility in implementation. For example, Article 10 of the Treaty allows countries to meet their obligations through various legal frameworks, including exceptions for beneficiary persons or broader national mechanisms.

South Africa is yet to ratify the Marrakesh Treaty or formally introduce similar provisions into law. The Department of Trade, Industry and Competition has committed to ratifying the Treaty once the Copyright Amendment Bill is enacted, further advancing access rights for persons with disabilities.

Copyright Amendment Bill

The Copyright Amendment Bill (CAB) was first introduced in Parliament on 10 May 2017 to amend the Copyright Act 98 of 1978. Under clause 19D, the CAB includes a limited exception to copyright infringement where a person, without the authorisation of the copyright owner, and on a non-profit basis, makes an accessible format copy for the benefit of a person with a disability. This section aims to allow persons with disabilities to access copyrighted works as easily and comfortably as persons without disabilities.

Parliament approved the CAB on 28 Match 2019 but President had reservations about certain provisions in the CAB and referred it back to Parliament for reconsideration. Frustrated by the delay in enacting the CAB’s relevant provisions, Blind SA (an organisation advocating for the rights and empowerment of visually impaired individuals in South Africa) challenged the constitutionality of the Copyright Act in the High Court, specifically, sections 6 and 7 which state that that copyright in literary, musical or artistic works confers the exclusive right to, amongst other things, reproduce the work in any form, publish the work if it hasn’t been published before, adapt the work, or perform any of the above actions on adaptations of the work.

Blind SA claimed that prohibiting the blind and visually impaired from legally accessing literary and artistic material in accessible formats, infringes their constitutional rights, including their rights to dignity, to receive or impart information or ideas, and to education; and amounts to unfair discrimination by the state on the basis of disability. The High Court ruled in favour of Blind SA on 7 December 2021, declaring these sections invalid to the extent that they limit the access of the blind and visually impaired to accessible format copies of published literary works, and artistic works.

On 21 September 2022, the Constitutional Court confirmed the High Court’s ruling, declaring that the provisions of section 6 and 7 were, in these circumstances, unconstitutional and therefore invalid as they unfairly prevent access to copyrighted materials for persons with visual and print disabilities. This declaration of invalidity was suspended for a period of 2 years (until 21 September 2024) to afford Parliament opportunity to address the legislative defect. The Constitutional Court provided immediate interim relief by reading in section 13A into the Act, which allowed for the creation of accessible format copies without copyright owners’ permission.

Parliament passed the revised CAB on 29 February 2024 and resubmitted it to the President for his signature on 2 March 2024. Despite multiple requests from Blind SA, the President did not sign the CAB before the expiry of the suspension period on 21 September 2024, resulting in the lapse of the interim provisions and again leaving persons with disabilities without the necessary legal access to literary materials.

Final Order and Constitutional Relief

Blind SA approached the courts again and in the case of Blind SA v President of the Republic of South Africa and Others (CCT 300/24) [2025] ZACC 9 (7 May 2025), requested, at the very least, that section 13A be reinstated until it is no longer necessary. Alternatively, they requested that Parliament’s proposed solution, clause 19D, which had already undergone public and parliamentary review, be adopted.

The Constitutional Court carefully considered whether amending the Copyright Act to include section 19D would be judicial overreach, given that this would enact provisions that have not been signed into law by the President.  It referred, in its judgment, to previous decisions on this point, in which it was held that the court does have the power to order just and equitable relief even where a case is not one in which the court makes a declaration of invalidity of existing legislation.

Clause 19D aligns with constitutional imperatives and international obligations, providing a robust framework for accessibility. It includes provisions for cross-border exchange of accessible-format copies, which section 13A lacked. By including clause 19D in the Copyright Act, the Constitutional Court would align South Africa’s domestic law with the goals of the Marrakesh Treaty.

The Court decided that reading in clause 19D as an interim measure would protect the rights of visually and print-disabled persons without impeding the legislative process. Until Parliament enacts new legislation to address the constitutional defect, section 19D is deemed included in the Copyright Act.

Consequences for Copyright Owners

As a result of clause 19D, the consent of the copyright owner is no longer required to create accessible format copies for persons with disabilities. However, specific conditions must still be met. An authorised entity or designated person may make and share accessible format copies of copyrighted works for persons with disabilities without needing the copyright owner’s permission, as long as:

  • The person with a disability has legal access to the original work.
  • The original work’s integrity is respected during conversion, considering accessibility needs.
  • The activity is non-profit.

These copies can be shared through lending or digital means. Persons with disabilities, or those assisting them (including authorised entities), may:

  • Reproduce accessible copies for personal use.
  • Import or export accessible copies legally, on a non-profit basis, provided they are used only to assist persons with disabilities.

All accessible copies must acknowledge the original source and author, if named.

While the balance between copyright protection and accessibility remains delicate, South Africa is now more closely aligned with international standards and better equipped to address the “book famine” experienced by persons with disabilities.